Speaking on the Senate floor this morning Gardner said, “Until 8:58 this morning we believed in Colorado that state’s rights would be protected. We believed that the will of Colorado voters would be respected…I think that I am obligated by the people of Colorado to take all steps necessary to protect the state of Colorado and their rights. And that’s why I will be putting today a hold on every single nomination from the Department of Justice until Attorney Jeff Sessions lives up to the commitment that he made to me in my pre-confirmation meeting with him, the conversation we had that was specifically about this issue, of state’s rights in Colorado.”

In a press release U.S. Representative Mike Coffman (R-CO) said, “Attorney General Sessions needs to read the Commerce Clause found in Article 1, Section 8, Clause 3 of the U.S. Constitution that limits the power of the federal government to regulate interstate and not intrastate commerce. The decision that was made to legalize marijuana in Colorado was made by the voters of Colorado and only applies within the boundaries of our state. Colorado had every right to legalize marijuana, and I will do everything I can to protect that right against the power of an overreaching federal government.”

The United States Supreme Court however has repeatedly held that commerce entirely within a state that can affect interstate commerce is within the regulatory powers of Congress.

In the seminal case Wickard v. Filburn, 317 U.S. 111 (1942) Chief Justice Harlan Fiske Stone wrote, “The power of Congress over interstate commerce is plenary and complete in itself… Hence, the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.”

Writing for the majority in Gonzales v. Raich, (2005) Justice Stevens wrote, “Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce is firmly established.” This case affirmed that even “intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law” does not exempt marijuana users from federal prosecution.

The new guidance letter from AG Sessions does not openly say that federal enforcement actions against state-authorized marijuana operations are imminent.

AG Sessions writes, “In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions…These principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”